Alphonso Ward a/k/a Alfonso Ward a/k/a Alfonzo Ward v. State of Mississippi;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-KA-01056-COA

ALPHONSO WARD A/K/A ALFONSO WARD APPELLANT
A/K/A ALFONZO WARD

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/01/2018
TRIAL JUDGE: HON. LINDA F. COLEMAN
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: MOLLIE MARIE McMILLIN
ALPHONSO WARD (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: BRENDA FAY MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 03/10/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., GREENLEE AND TINDELL, JJ.

GREENLEE, J., FOR THE COURT:

¶1. Following a jury trial, Alphonso Ward was convicted in the Bolivar County Circuit

Court for two counts of burglary as a habitual offender. The first count was burglary of a

church under Mississippi Code Annotated section 97-17-33(2) (Rev. 2014). The second

count was automobile burglary1 under Mississippi Code Annotated section 97-17-33(1).

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Ward briefly argues in a pro se supplemental brief that he should have been tried for
a misdemeanor, instead of a felony. Both crimes for which Ward was indicted, tried, and
convicted are felonies. Further, because Ward was convicted as a habitual offender under
Now, on appeal, Ward cites four alleged errors: (1) an improper jury instruction; (2)

insufficiency of the evidence; (3) an unconstitutional habitual-offender sentence; and (4) an

improper consideration of prior convictions. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. At around 9:15 a.m. on December 31, 2017, Pastor Samuel Washington and his wife

arrived at Cornerstone Christian Worship Center off Highway 61 South in Cleveland,

Mississippi, to begin preparing for Sunday services. When they arrived, Pastor Washington

noticed that a window near the front door was broken. He also noticed that the church’s

communion table had been turned on its side and was propped against the broken window,

blocking the window’s view from the parking lot. Inside the church, Pastor Washington

immediately saw “things scattered across the floor.” At trial, he testified, “[Y]ou could see

[that] someone [had] rifled through everything.”

¶3. The Cleveland Police Department (CPD) arrived and secured the crime scene. Officer

Matthew Brown initially responded to the call at Cornerstone Church, but he was directed

to respond to another call not long after arriving at the church. Alongside Officer Brown,

both Officer Seth Nelson and Investigator Joe Smith responded to the call. At the church,

Pastor Washington guided officers through the ransacked church. He reported that an AT&T

mobile hotspot and small Blu-ray player were missing from the premises. The officers took

pictures of the scene and then left.

¶4. Later, while cleaning up the church, Pastor Washington found a stack of misplaced

Mississippi Code Annotated section 99-19-81 (Rev. 2015), he received the maximum
sentence for each conviction.

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school books and papers under a kitchen cabinet. The materials did not belong to the church,

and a name was written on them. Pastor Washington relayed that information to the CPD.

The officers returned to the church and retrieved the school books and papers.

¶5. Responding to the separate and seemingly unrelated call, Officer Brown made contact

with Alphonso Ward, and Officer Brown saw Ward carrying a pink and black backpack. As

Officer Brown approached Ward on foot, Ward began to walk away. While Officer Brown

was in pursuit, another officer, Sergeant Stanley Brewer, witnessed Ward “throw something

in the bushes” behind a nearby building. After Ward was taken into custody, Sergeant

Brewer retrieved the pink and black backpack from the bushes. The backpack contained an

AT&T mobile hotspot and a Blu-ray player.

¶6. At trial, Chanda Burton testified that on the same morning that Pastor Washington

reported the break-in, she noticed that her vehicle door had been left ajar. She stated that she

did not immediately think anything of it, as her young children or her husband may have left

it open. Burton then noticed that she had a missed call and voicemail from the CPD stating

that they needed to speak to her. Burton arrived at the police station and identified the school

materials and backpack. Burton later testified that the backpack had gone missing from

inside her vehicle. Burton filed a police report for automobile burglary before leaving the

police station.

¶7. After the State rested its case-in-chief, Ward moved for a directed verdict, which the

circuit court denied. Ward then testified in his defense. He explained that the day before the

alleged crime occurred, he had returned some stolen credit cards to the CPD. He also stated

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that he received the backpack and the other items from a man named Edward Banks and that

he intended to return the items to the CPD as he had done with the stolen credit cards. Upon

the completion of Ward’s testimony, the defense rested.

¶8. The jury found Ward guilty of both counts of burglary. At a subsequent hearing, the

circuit court sentenced Ward as a nonviolent habitual offender to serve fourteen years in the

custody of the Mississippi Department of Corrections (MDOC) for the conviction of the first

count and to serve a concurrent seven-year term for the conviction of the second count. After

sentencing, Ward filed a notice of appeal.

DISCUSSION

I. Jury Instruction

¶9. Ward submitted jury instruction D-4 to the court, which was later given to the jury as

“Jury Instruction No. 7.” The instruction provided:

The Court instructs the jury that the presumption of guilt based upon recent
possession of stolen goods will not be allowed to stand when the explanation
of the accused, Alphonso Ward, concerning his possession is satisfactory or
raises a reasonable doubt of his guilt. It is for you the jury to determine if the
explanation offered by the accused, Alphonso Ward, is reasonable and
credible.

¶10. This Court reviews a trial court’s decision to give or refuse jury instructions for an

abuse of discretion. Moody v. State, 202 So. 3d 1235, 1236-37 (¶7) (Miss. 2016). “The

instructions are to be read together as a whole, with no one instruction to be read alone or

taken out of context.” Young v. State, 891 So. 2d 813, 819 (¶16) (Miss. 2005) (quoting

Howell v. State, 860 So. 2d 704, 761 (¶203) (Miss. 2003)). There is no reversible error if the

jury instructions, when read together, fairly announce the law of the case and create no

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injustice. Carson v. State, 212 So. 3d 22, 28 (¶22) (Miss. 2016) (citing Newell v. State, 49

So. 3d 66, 73 (¶20) (Miss. 2010)).

¶11. Ward asserts that the circuit court committed plain error when it gave “Jury

Instruction No. 7” because it “shifted the burden of proof to [him].” Because Ward proposed

the instruction, he did not object to the jury instruction at trial. “To preserve a jury

instruction issue on appeal, the defendant must make a specific objection to the proposed

instruction to allow the [circuit] court to consider the issue.” Husband v. State, 204 So. 3d

353, 356 (¶10) (Miss. Ct. App. 2016). “It is axiomatic that ‘a defendant cannot complain on

appeal alleged errors invited or induced by himself.’” Thomas v. State, 249 So. 3d 331, 347

(¶55) (Miss. 2018) (quoting Galloway v. State, 122 So. 3d 614, 645 (¶38) (Miss. 2013)).

Further, “[a] defendant cannot complain of an instruction which he, not the State, requested.”

Harris v. State, 861 So. 2d 1003, 1015 (¶24) (Miss. 2003) (citing Buford v. State, 372 So. 2d

254, 256 (Miss. 1979)). Therefore, this issue is without merit.

II. Sufficiency of the Evidence

¶12. In his pro se supplemental brief, Ward alleges that the State failed to prove beyond

a reasonable doubt that he was guilty of burglarizing Cornerstone Church and Burton’s

automobile. In turn, he argues that he was deprived of his due process rights. We review the

evidence in the light most favorable to the State and “ask whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Sellers v.

State, 108 So. 3d 456, 458-59 (¶6) (Miss. Ct. App. 2012).

¶13. In this case, no eyewitnesses saw Ward burglarize the church or Burton’s automobile.

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However, Ward was connected to the crimes by circumstantial evidence. That evidence

consisted of testimony from Officer Brown, who saw Ward carrying a pink and black

backpack. Sergeant Brewer testified that he saw Ward fleeing from Officer Brown. He

further testified that he retrieved the backpack from the bushes and found an AT&T hotspot

and Blu-ray player inside it. Burton testified that her daughter’s backpack, which was the

same backpack that Ward tossed into the bushes, had gone missing from her vehicle. Pastor

Washington testified that an AT&T hotspot and Blu-ray player were missing from the

church’s premises. He also testified that he discovered Burton’s daughter’s school books and

materials in a kitchen cabinet at the church. At the police station, Burton identified the items

as the school materials her daughter kept in her pink and black backpack.

¶14. The unexplained possession of recently stolen property is a circumstance from which

culpability of a crime may be inferred. Brooks v. State, 695 So. 2d 593, 595 (Miss. 1997).

A four-factor consideration is used to evaluate that inference:

1. The temporal proximity of the possession to the crime to be inferred;

2. The number or percentage of the fruits of the crime possessed;

3. The nature of the possession in terms of whether there is an attempt at
concealment or any other evidence of guilty knowledge;

4. Whether an explanation is given and whether that explanation is
plausible or demonstrably false.

Jones v. State, 819 So. 2d 558, 561 (¶13) (Miss. Ct. App. 2002) (citing Brooks, 695 So. 2d

at 594-95).

¶15. The first factor, the temporal proximity of possession, lends great strength to the

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inference that Ward committed both crimes because Ward was found in sole possession of

the backpack, AT&T hotspot, and Blu-ray player on the same day the burglaries were

reported to the police. The second factor, the number or percentage of the fruits of the crime

possessed, also lends strength to the inference because Ward possessed a high percentage of

the stolen items, if not all (as the school books and papers were discovered at the church) of

them. The third factor is likewise met. Ward clearly showed guilty knowledge when he fled

from Officer Brown on foot and attempted to conceal the stolen items in a nearby bush.

Finally, regarding whether Ward provided an explanation as to why or how he came into

possession of the stolen items, Ward testified that he received the backpack and other items

from a man named Edward Banks. At trial, Banks was not called as a witness on Ward’s

behalf, and Ward submitted no other evidence to corroborate his testimony. See Shields v.

State, 702 So. 2d 380, 383 (Miss. 1997) (“[T]he inference is at its strongest when the

defendant wholly fails to make a credible explanation or makes a demonstrably false

explanation.”). Therefore, these factors provide ample evidence for this Court to conclude

that there was sufficient evidence to support a conviction of both crimes.

III. Habitual Offender

¶16. Ward also asserts in his pro se supplemental brief that the trial court violated his Sixth

and Fourteenth Amendment rights by sentencing him as a nonviolent habitual offender under

Mississippi Code Annotated section 99-19-81. That statute provides in pertinent part:

Every person convicted in this state who shall been convicted twice previously
of any felony or federal crime upon charges separately brought and arising out
of separate incidents at different times and who shall have been sentenced to
separate terms of one (1) year in any state and/or federal penal institution, . . .

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shall be sentenced to the maximum term of imprisonment prescribed for such
felony . . . .

In an “Amended Judgment and Sentence” order, the circuit court sentenced Ward as a

habitual offender to serve a term of fourteen years for the conviction of count one and a

concurrent seven-year term for the conviction of count two.

¶17. Ward now claims that his sentencing “should have been presented to the jury.” Ward

argues that his enhanced sentence as a habitual offender under section 99-19-81 is contrary

to the United States Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99

(2013), and Apprendi v. New Jersey, 530 U.S. 446 (2000). However, the rule adhered to in

those cases is as follows: “Other than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” Alleyne, 570 U.S. at 126 (Roberts, C.J., dissenting)

(emphasis added) (quoting Apprendi, 530 U.S. at 490). Therefore, Alleyne and Apprendi do

not require the State to prove prior convictions to a jury. It is constitutionally permissible for

a judge to impose an enhanced habitual-offender sentence under section 99-19-81 based on

the judge’s own finding that the defendant’s prior convictions and sentences satisfy the

requirements of that statute. See Smith v. State, 963 So. 2d 1168, 1169-70 (¶5) (Miss. Ct.

App. 2007); accord Collins v. State, 232 So. 3d 739, 747 (¶33) (Miss. Ct. App. 2017)

(applying the same to Mississippi Code Annotated section 99-19-83 (Rev. 2015)).

IV. The Circuit Court’s Consideration of Ward’s Prior Offenses

¶18. Ward asserts that the trial court committed reversible error when it considered his

prior convictions to determine his sentences for both burglary convictions. He claims, “No

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person from MDOC Records Department [authenticated] Ward’s prior convictions to be true

or correct.” He finally asserts that such action prejudiced the outcome his trial and violated

his Sixth Amendment right to confront a witness.

¶19. At the sentencing hearing, the State introduced three certified exhibits that collectively

showed that Ward had pled guilty to three charges arising from separate incidences2 and that

he had been sentenced to serve at least one year for each incident. Further, Ward was

sentenced as a nonviolent habitual offender for those three offenses. The defense counsel

did not object to the use of those exhibits. Therefore, we find that the State presented

adequate evidence to prove Ward’s prior convictions.

CONCLUSION

¶20. For these reasons, the judgment of the Bolivar County Circuit Court is affirmed.

¶21. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., WESTBROOKS,
TINDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

2
Those prior convictions included (1) Cause No. 2006-054; (2) Cause No. 2006-055;
and (3) Cause No. 2006-056.

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